2016 PLP 2 (CLCN)

CH. MUHAMMAD MASOOD JAHANGIR, J.

Through the instant judgment I intend to dispose of Civil Revision Nos. 1073-2004 and 1074-2004, which have been directed against the consolidated judgments and decrees dated 29.6.2002 passed by the learned Civil Judge and dated 3.3.2004 delivered by the learned Additional District Judge through which two declaratory suits as well as appeals filed by the present petitioners/plaintiffs have been dismissed respectively. 3(sic.) The facts emanate from the perusal of file are that Muhammad Hussain the father of the parties was owner of agricultural land measuring 99 kanals 13 marlas as well as village sites Nos.499 to

501. Out of agricultural property a chunk of land measuring 32 kanals 10 marlas was allegedly gifted by him through registered gift deed 1782 dated 5.5.1988 whereas the villages sites were also allegedly gifted by father of the parties to the respondents/defendants through registered gift deeds No.1781 dated 5.6.1988. The plaintiffs/respondents by filing two separate suits challenged the vires of the above referred gift deeds before the learned trial court. In both the suits it was pleaded by the petitioners/plaintiffs that defendant/respondent No.1 was employee in a company in Sindh and defendant/respondent No.2 was employee of police department and Muhammad Hussain the father of the parties remained with the plaintiffs, that on his death Muhammad Hussain deceased left behind four sons and two daughters, that after the death of father of the parties the plaintiffs contacted the Patwari for attestation of inheritance mutation in the name of legal heirs of deceased Muhammad Hussain when it was brought to their knowledge that the disputed property as well as village sites had already been transferred in favour of the respondents/defendants vide above referred two gift deeds and that the alleged gift deeds being forged, fictitious and based on fraud were inoperative upon the rights of the plaintiffs/petitioners. It is further averred in the plaint that father of the parties was an old age person who never offered the disputed land as well as village sites for gift to the respondents/defendants. The said two suits were contested by the respondents/defendants with the assertion that after the gift the possession of the disputed property was also handed over to them by the alleged donor vide agreement dated 5.6.1988, and that the father of the parties with his free consent transferred the disputed property in favour of respondents.

4. The learned trial court consolidated both these suits and framed the following consolidated issues:-

1. Whether the plaintiffs are entitled to equal share in Ahata Jaat Nos.499 to 501 situated Khawet No.45 Khatoni No.57 Chak No.247/RB District Faisalabad as legal heir of deceased Muhammad Hussain? OPP

2. Whether the gift deed No.1781 dated 5.6.1988 in favour of defendants relating to the suit property is sham, forged, frivolous and liable to be set aside? OPP

3. Whether the suit of the plaintiffs is time barred, as the gift deed No.1781 was executed on 5.6.1988? OPD

4. Whether plaintiffs are estopped from their words and conduct? OPD

5. Whether the suit has been properly valued for the purposes of court fee? OPD

6. Whether the plaintiffs have filed frivolous suit, hence the defendants are entitled to recover special costs of Rs.25,000/-from the plaintiffs under section 35-A, C.P.C.? OPD

7. Relief.

5. Both the parties led evidence in support of their respective pleas before the learned trial court, who after analyzing the same dismissed the suits. Aggrieved from that the petitioners preferred two appeals before the learned lower appellate court, which have also been dismissed vide consolidated judgment and decrees mentioned in para 2 supra. Feeling dissatisfied these revision petitions have been filed by the petitioners.

6. While perusing the file, it is straightaway noticed that the learned trial court while framing the issues ignored to frame issue regarding the agricultural property as well as gift deed No.1782 dated 5.6.88 like issues Nos.1 and 2 which only relate to Ahatas only. The learned lower appellate court while delivering its judgment and decree dated 3.3.2004 neither mentioned the issues nor decided them one by one and extended its jurisdiction beyond the scope of Order XLI, rule 31, C.P.C. The above two factors are sufficient to remand the case to the learned trial court but the chequred history of the case forced me to decide the case in hand on merits. These suits were filed in the year 2000 and after the lapse of 14 years to throw the cases to the court of first instance is not justified. As both the parties while keeping their pleadings in mind had fully produced the evidence before the learned trial court and the alleged donor as well as the donees of disputed gift deeds are the same, the remand of cases is even not justified on these technical grounds.

7. The learned counsel for the petitioners/plaintiffs has argued that father of the parties was an old person and the respondents while practicing fraud got attested the disputed gift deeds, that neither any offer was made by the deceased father in his life time nor any question arose regarding its acceptance, that possession of the disputed property as well as village sites was never handed over to the respondents/defendants by their deceased father in lieu of any gift, that the defendants/respondents who were beneficiaries of impugned gift deed have not only failed to prove the alleged transaction reflected in disputed gift deeds independently, but they also failed to prove the valid execution of disputed gift deed. He further added that neither the marginal witnesses of the impugned gift deeds were produced nor Attesting Officer was brought into the witness box by the respondents/defendants to prove the contents of gift deeds. He also argued that the impugned judgments and decrees dated 29.6.2002 and 3.3.2004 rendered by the courts below suffered from material irregularities and illegalities and also based upon jurisdiction defects, which are liable to be interfered with by this Court in the exercise of the revisional jurisdiction provided under section 115, C.P.C. of 1908. He has lastly prayed for acceptance of the instant civil revision, setting side of the impugned judgments and decrees rendered by the courts below and also prayed that suits filed by the petitioners/plaintiffs be decreed.

8. Conversely the learned counsel for the respondents has argued that the father of the parties with his free consent had made an offer for gift of the suit property to the respondents/defendants, who accepted the same and in confirmation of said transaction the impugned gift deeds were not only got scribed, but these were also got attested by the donor himself. He has further argued that the petitioners/plaintiffs filed suits before the learned trial court beyond limitation. He has lastly prayed for dismissal of these revision petitions.

9. Arguments heard and record perused.

10. The bone of contention between the parties has been reflected in issues Nos.1 and 2 and the findings rendered by the learned courts below thereon require re-determination by this Court. The basic case of the petitioners as embodied in the plaints is that the disputed property had never been gifted by their father to the respondents/defendants and the respondents/defendants fraudulently got attested the gift deeds. To discharge the onus of above issue, Muhammad Akram one of the plaintiffs/petitioners appeared as PW3 and produced Faiz PW1 as well as Abdul Shakoor PW2 and the said PWs deposed that Muhammad Hussain was the father of the parties who had four sons and two daughters, but Muhammad Hussain had never transferred the disputed property and the village sites to the respondents/defendants in lieu of any gift and that the gift deeds were collusive and fictitious. During the course of cross-examination nothing adverse could be brought from the said PWs by the respondents/defendants. When one of the petitioners/plaintiffs and his witnesses PW1 and PW2 deposed on oath that Muhammad Hussain had never made any offer regarding gift of the disputed property and the gift deeds were fraudulent the onus was shifted upon the shoulders of respondents/defendants to prove the original transaction of gift as well as attestation of the gift deeds by the father of the parties in favour of the respondents with his free will and consent. To rebut the said evidence of the plaintiffs Muhammad Afzal one of the respondents/defendants, appeared as DW1 and the other respondent/defendant Muhammad Arshad appeared as DW

2. They also produced Muhammad Khalil son of Muhammad Siddique deceased Deed Writer as DW

3. Both the respondents/defendants PW.1 and PW.2 in their examination in chief nowhere mentioned any detail regarding the settlement of original transaction of gift. Both the said beneficiaries DW1 and DW2 even did not depose in their statements that the disputed property had been ever offered by their father and they accepted the said offer of gift.

11. Before dealing with the above referred evidence and the arguments of the learned counsel for the parties at the bar, it is pertinent to mention the necessary ingredients of gift as under:-

1. Offer of gift by the donor.

2. Acceptance of gift by the donee.

3. Delivery of possession to the donee by the donor.

12. The alleged transaction of gift attributed to the deceased father was a prior event. The respondents/defendants never pleaded in their written statements that when, where and in whose presence the offer of gift was made by the alleged donor and the same was accepted by the respondents/defendants and the possession of the suit property was delivered to them in lieu of the said gift transaction. The respondents/beneficiaries have not been able to establish on record the essential elements of a valid gift and if any of the ingredients of the valid gift is missing then the respondents have to suffer as it was their duty being beneficiaries of transaction to prove the same. In arriving at this conclusion I am fortified by the dictum laid down in the judgments reported as (1999 CLC 1505), (2007 SCMR 996) and (2008 YLR 1896) wherein it has been held that there is left no cavil with the proposition that in case of transfer of immoveable property through gift execution whereof being denied, the onus of proof would shift to the beneficiary of the instrument. It is strange that in the present case even the defendants/respondents not only failed to produce the marginal witnesses as well as the identifier but also the Attesting Officer of the disputed gift deeds who allegedly sanctioned the gift deeds in their favour. The same could be the best evidence to prove the valid attestation of gift deeds wherein even the alleged transaction of gift was incorporated, but the said relevant and concerned witnesses were withheld by he respondents without showing any justification and inference under Article 129(g) of the Qanun-e-Shahadat Order 1984 is to be drawn against them. The statements of alleged donees and son of the deceased Deed Writer alone is not sufficient to declare that respondents had succeeded to prove the valid execution of impugned gift deeds. In arriving at this view I am fortified by the dictum laid down by the august Supreme Court of Pakistan in the judgment reported as Abdul Ghafoor and others v. Mukhtar Ahmad Khan and others (2006 SCMR 1144). Para-5 of the said judgment being relevant is reproduced hereunder:- (5). There is no cavil to the proposition that a presumption of truth is attached to registration of a document but if its contents are challenged then the onus shifts on the beneficiary to prove its contents. It was for the petitioners/defendants to prove that Gul Muhammad had validly gifted the suit property in terms of impugned gift-deed but neither any marginal witnesses of said gift-deed nor scribe and even the person who identified Gul Muhammad were produced. The petitioners/defendants miserably failed to prove their case. An attempt was made to prove the gift through D.W.2 Noor Muhammad and D.W3 Haji Faiz Bakhsh Khan. They are admittedly not witnesses of gift-deed. Their statement that the donor Gul Muhammad in their presence had expressed his desire to gift the property to the petitioners/defendants to the exclusion of father of respondents/ plaintiffs is discrepant nor the place and time of the alleged desire expressed by the donor. On the other hand statements of P. Ws. 1 and 2 who are the sons of Ghulam Rasool inspire confidence. The trend of cross-examination of P.W Mukhtiar Ahmad indicates that it was suggested on behalf of respondents/plaintiffs that the relations between donor Gul Muhammad and father of petitioners/defendants Ghulam Rasool were cordial and no circumstance was brought on record to indicate that the relations were strained to warrant an inference that the donor had any tenable reasons to exclude his son Ghulam Rasool from the inheritance. So far as the argument of the learned counsel with regard to the law laid down in Allah Rakha and others v. Federation of Pakistan and others PLD 2000 FSC 1 is concerned the said judgment has been appealed against and by operation of law it stands suspended. Even otherwise this point was never raised either in the written statement or before the Lahore High Court.

13. The contention of the learned counsel for the petitioners that as the gift deeds are registered documents those attained presumption of truth and respondents/beneficiaries are not required to prove the contents of the same is misconceived. The same question has also been answered Abdul Ghafoor's case (supra), which has again been affirmed in another case reported as "Allah Diwaya v. Ghulam Fatima represented by Ahmad Sher (PLD 2008 SC 73). When the petitioners/plaintiffs have brought the case before the learned trial court with the assertion that gift deeds were product of fraud and no one had witnessed the same, then only the attesting witnesses of the gift deed could deny the above referred assertion of the petitioners/plaintiffs. The entire exercise in attestation of gift deeds seems to be engineered and reasonable doubt has been affirmed by the respondents/defendants by withholding the said relevant evidence. By now it is well settled principle that deed/instrument is not a proof of title but merely an indicative of some previous transaction between the parties of the said document and keeping in view such principle whenever any document/instrument is challenged then burden heavily lies on the shoulders of beneficiary of the transaction to prove the document as well as the original transaction, which he is required to fall back upon. Reliance is placed upon the judgments reported as Fida Hussain v. Murid Sakina (2004 SCMR 1043), Muhammad Munir v. Muhammad Saleem (2004 SCMR 1530), Fida Hussain v. Abdul Aziz (PLD 2005 SC 343), (2005 SCMR 343) and Muhammad Afzal v. Matloob Hussain (PLD 2006 SC 84). In the present case the respondents/defendants utterly failed to prove the basic transactions of gift as well as execution of impugned gift deeds.

14. In view of the facts and circumstances of the case the findings of both the courts bellow on issues Nos.1 and 2 being unsustainable required interference by this Court, which are hereby reversed while answering these issues in favour of petitioners/plaintiffs and against the respondents/defendants. The second last submission made by the learned counsel for the respondents/defendants at the fag end of his arguments that suits filed by the petitioners/plaintiffs were time barred is also misconceived. It is settled principle of law that no limitation runs against the gift deed alleged to have been procured by practicing fraud and even otherwise any new entry in the revenue record on the basis of the said deed gives fresh cause of action, therefore, the suits filed by the petitioners were quite within time. As such findings rendered by the courts below on issue No.3 are reversed, which is answered against the respondents/defendants. Every new entry in the revenue record creates a fresh cause of action. Reliance in this respect is placed on the judgments reported as Saleem Akhtar v. Nisar Ahmad (PLD 2000 Lahore 385), Ahmad Ali v. Bashir Ahmed (2013 YLR 1870) and Abdul Rahim v. Jannatay Bibi (2000 SCMR 346).

15. The last submission of the learned counsel for the respondents/defendants that concurrent findings of courts below cannot be interfered with by this Court while exercising jurisdiction under section 115 is also without any force. Although the scope of interference with concurrent findings of fact is limited, but such findings can be interfered with by this Court under section 115, C.P.C. if courts below appeared to have either misread evidence on record or while assessing evidence had omitted from consideration some important piece of evidence which had direct bearing on the issue involved, in arriving at such view this court is fortified by the dictum laid down in the judgment reported as Abdul Hakeem v. Habibullah and 11 others (1997 SCMR 1139) and the relevant portion thereof is reproduced as under:- "

6. Before considering the contentions of the parties on merit, we would like to mention here that the scope of interference with concurrent finding of fact by the High Court in exercise of its revisional jurisdiction under section 115, C.P.C. is very limited. The High Court while examining the legality of the judgment and decree in exercise of its power under section 115, C.P.C. cannot upset a finding of fact, however erroneous it may be, on reappraisal of evidence and taking a different view of the evidence. Such findings of facts can only be interfered with by the High Court under section 115, C.P.C. if the courts below have either misread the evidence on record or while assessing or evaluating the evidence have omitted from consideration some important piece of evidence which has direct bearing on the issues involved in the case. The findings of facts will also be open to interference by the High Court under section 115, C.P.C. if the approach of the Courts below to the evidence is perverse meaning thereby that no reasonable person would reach the conclusions arrived at by the Courts below on the basis of the evidence on record.***" This question has also been dealt with by the august Supreme Court of Pakistan in the judgment reported as Muhammad Anwar and others v. Mst. Ilyas Begum and others (PLD 2013 SC 255) while holding that it is obvious and clear that no Court in the country has the jurisdiction to decide about the rights of the parties wrongly and in violation of law and the Revisional Court has no exception to this rule. It has also been held therein that Court could not pass an order of its liking, solely on the basis of its vision and wisdom, rather it was bound and obligated to render decisions in accordance with law and the law alone. So, this court can decide in which cases the interference is warranted.

16. Consequently these civil revisions are allowed, the impugned judgments and decrees passed by the learned courts below are hereby set aside and the suits filed by the petitioners/plaintiffs are hereby decreed. ZC/M-383/L Revisions accepted.